ARTS CENTER DEFENSE EMERGING

By Kim MastersSeptember 26, 1990

CINCINNATI, SEPT. 25 -- For the first time today, the defense in the obscenity case against the Contemporary Arts Center here gave prospective jurors a description of the seven Robert Mapplethorpe photographs that are the basis for charges against the gallery and its director, Dennis Barrie.

The outlines of the defense's strategy began to emerge as lawyers for the arts center and Barrie questioned prospective jurors in the second day of jury selection.

Attorney Louis Sirkin was all smiles and affability -- literally invoking apple pie and baseball -- as he quizzed potential jurors about their beliefs on obscenity and freedom of expression.

Sirkin must ultimately convince the jury that his clients were protected by the First Amendment when they exhibited Mapplethorpe's work.

Sirkin focused first on five homoerotic and sadomasochistic images cited in the obscenity indictment. Those include depictions of a man with a bullwhip inserted in his rectum, a finger inserted in a penis and one man urinating into another's mouth.

Sirkin addressed his remarks to four men and four women, all prospective jurors, seated in the jury box. All listened impassively. His comments also were directed toward 42 other possible jurors, who may be called as candidates as any of the initial eight are dismissed.

Sirkin asked each of the eight in the jury box whether, having heard the descriptions, he or she felt capable of viewing the pictures and judging the case objectively. Each said yes.

Later he explained that the case also involved two photographs of children whose genitals are visible. He stressed that each child is portrayed individually and that "there's no allegation of sexual activity."

The charges relating to those pictures involve the portrayal of a minor in a state of nudity, allegations that are unrelated to the obscenity charges, he emphasized.

"Can you separate those?" he asked a potential juror. Again, the answer was yes. "There's nothing dirty about a naked child, is there?" he asked another. She said no.

Sirkin spoke to the prospective jurors in reverse order, so that his first questions about the five homoerotic pictures were directed to the only member of the panel who had seen the Mapplethorpe exhibit last summer at the Contemporary Arts Center.

He asked the young woman, a planner at a Cincinnati medical center, why she had gone to the exhibit. "You didn't go to be turned on or anything like that?" he asked. She said no. The same woman said she was familiar with the views of a local antipornography group and considered them too restrictive. Prosecutor Frank Prouty repeatedly asked the court to dismiss her, but Judge David Albanese responded that he believed the woman could hear the case objectively.

The prosecution used the first of its six peremptory challenges to remove her. Prouty did not ask the court to dismiss any other jurors for cause.

Sirkin and his partner, Marc Mezibov, asked the court to dismiss one potential juror who said she believed homosexuality violates the laws of God. They sought dismissal of two others who said they have little interest in art or current events. Sirkin argued that the latter two revealed "not so much by their words but by their manner, that there is some bias in this case."

The judge refused to dismiss any of the three, but the defense has yet to exercise the first of its six peremptory challenges.

Sirkin sprinkled sports metaphors throughout the interrogation. Turning to one man, Sirkin suggested that one could appreciate a work even while disapproving of the subject matter. A person doesn't have to like San Francisco 49ers quarterback Joe Montana, Sirkin said, to appreciate him.

"You don't have to like that pass he threw in the Super Bowl against us to see that he's one heck of a quarterback?" Sirkin asked. Again, the juror agreed.

Attempting to prepare the jury to understand the Supreme Court's standards for obscenity cases, Sirkin said repeatedly that the test is like a recipe for apple pie. One or two ingredients may be present, he said, but that does not make an apple pie. Similarly, he continued, material may seem to possess some characteristics of obscenity without meeting the legal definition.

"If it fits a couple of the ingredients in my recipe, you won't call it an apple pie, will you?" he asked one possible juror, who assured that she would not.

Sirkin also appears to be building an argument that Mapplethorpe's homoerotic work was a record of a vanishing lifestyle. He asked one juror about her family photo albums.

"The family photo album is kind of like a history book, isn't it?" he asked. "They're a way of telling a little bit of a story about ourselves." Jury selection continues Wednesday.